97-3645(GST)I
BETWEEN:
GITA DIEM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
The Honourable Judge D.G.H. Bowman
ORDER
Whereas
the appeal was dismissed pursuant to subsection 18.21(1) of the
Tax Court of Canada Act;
And
whereas the Appellant has applied under subsection 18.21(2) of
that Act to have the dismissal set aside and the appeal
set down for hearing;
The
application is dismissed and the judgment of November 9, 1998
stands in accordance with the Reasons for Order.
Signed at Ottawa, Canada, this 16th day of June 1999.
J.T.C.C.
Date: 19990616
Docket: 97-3645(GST)I
BETWEEN:
GITA DIEM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Bowman, J.T.C.C.
[1] In this motion the appellant seeks
to have set aside a judgment dismissing her appeal.
[2] The appeal from an assessment made
under the Excise Tax Act came on before me on October 22,
1998. No one appeared on behalf of the appellant and the appeal
was dismissed.
[3] Section 18.21 of the Tax Court
of Canada Act reads:
18.21(1) Where an appellant does not appear on the day
fixed for the hearing, or obtain an adjournment of the hearing,
of an appeal, the Court shall, on application by the respondent
and whether or not the appellant has received notice of the
application, order that the appeal be dismissed, unless the Court
is of the opinion that circumstances justify that the appeal be
set down for hearing at a later date.
(2) An appellant whose appeal has been dismissed pursuant
to subsection (1) may apply to have the order of dismissal set
aside and the appeal set down for hearing.
(3) The Court may set aside an order of dismissal made
under subsection (1) where
(a) it would have been unreasonable in all the
circumstances for the appellant to have attended the hearing;
and
(b) the appellant applied to have the order of dismissal
set aside as soon as circumstances permitted the application to
be brought but, in any event, not later than one hundred and
eighty days after the day on which the order was mailed to the
appellant.
[4] The appellant moves under
subsection 18.21(3) to set aside the order of dismissal.
[5] The appeal involved a claim for an
additional rebate of $1,336.93 in respect of a motorcycle
purchased on October 1, 1994 and exported from Canada on March 1,
1995. The claim for a rebate is made under subsection 252(1) of
the Excise Tax Act. That subsection permits a rebate of
tax to a non-resident in respect of property acquired for use
primarily outside of Canada provided that the property is
exported from Canada within 60 days from the date of
delivery.
[6] Before the date of hearing the
appellant, on October 2, 1998 wrote to the Court as follows:
I refer to the above Hearing scheduled for October 22, 1998 at
9.30 hrs at the Tax Court of Canada, Suite 902, Merrill Lynch
Canada Tower, 200 King Street West. Please be advised that I
currently reside in Switzerland and as such it will not be
possible for me to appear for this hearing. Additionally, as it
would be too costly for me to appoint a Power of Attorney, I
would like to request that you go ahead with the hearing in my
absence, taking into consideration the attached documents and
correspondence and the following:
I acknowledge that my vehicle was purchased on October 1, 1994
and picked up at Racer's Edge Ltd, Milton Ontario on
December 28, 1994. I also acknowledge that as per the Bill
of Lading the vehicle was exported out of Canada on March 01,
1995, this being 63 days after receipt of the object and not 60
days. I however, respectfully ask that you consider my attached
letter of July 01, 1998 where I outline factors which I submit
for consideration in my favour in the case.
[7] I dismissed the appeal on the
basis of the appellant's failure to appear. However even if I
had proceeded as requested on the basis of the material on the
file, and specifically the appellant's letter and the
assumptions pleaded in the reply to the notice of appeal (which,
if unrebutted, stand) I would still have dismissed the appeal in
light of the appellant's acknowledgement that the vehicle was
exported 63 days after the date of delivery.
[8] In considering whether to set
aside the dismissal one of the factors that should be taken into
account is whether there is any merit in the appeal. Here I find
that on the basis of the material on the file the appeal has no
hope of succeeding. Subsection 252(1) is quite clear and there is
no discretion in the Minister or the Court to permit an extension
of the 60 days referred to therein.
[9] The application is dismissed.
Signed at Ottawa, Canada, this 16th day of June 1999.
J.T.C.C.
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